Johnson v. Parker-Hannifin Corp., No. 24-3014, __ F.4th __, 2024 WL 4834717 (6th Cir. Nov. 20, 2024) (Before Circuit Judges Moore, Murphy, and Bloomekatz)

We’re bringing you an abbreviated Your ERISA Watch this week because of the holiday. In that spirit, we are covering only one case, but it is far from a turkey and more of a Thanksgiving treat, at least for plaintiffs.

This suit was brought as a putative class action by five former employees of the Parker-Hannifin Corporation who are participants in the Parker Retirement Savings Plan. The Plan is one of the largest 401(k) retirement plans in the country, with approximately $4.3 billion in assets.

The suit challenges one of the investment options chosen for the Plan by Parker-Hannifin, the Northern Trust Focus Funds, a suite of target date funds which were mostly passively managed to mimic the returns of a relevant benchmark. It also challenges the decision of the fiduciaries to choose funds with higher-cost share classes when institutional investors like Parker-Hannifin had the option to invest in the same funds with lower-cost share classes.

The district court granted Parker-Hannifin’s motion to dismiss in its entirety. With respect to claims challenging the prudence of the Plan’s Focus Fund investments, the court held that plaintiffs did not state a viable claim of fiduciary breach because they failed to identify a meaningful benchmark and because the other evidence to which plaintiffs pointed was insufficient to support a claim of imprudence. With respect to the allegation that the fiduciaries had unnecessarily caused the Plan to pay for higher-priced shares, the court held that the plaintiffs’ allegation that any threshold for lower cost shares would have been waived was “speculative and conclusory.” Finally, with respect to a third count alleging a failure to monitor the other fiduciaries, the court held that it was contingent on the success of the other two counts and thus likewise dismissed it. (Your ERISA Watch covered this decision in our December 13, 2023 edition.) 

In a two-to-one decision, the Sixth Circuit disagreed with the district court and reversed the dismissal of the case. The court noted at the outset that prudence “is a process-driven obligation,” meaning that, in the context of “an imprudent-retention claim,” the “ultimate question is whether the fiduciary engaged in a reasoned decision-making process when it decided to retain the investment.”

Given ERISA’s six-year statute of repose, the court agreed with defendants that evidence that the Plan’s original selection of the Focus Funds in 2013 was imprudent because it was untested at that time by live performance data could not support plaintiffs’ allegations that it was imprudent to retain those funds within the statutory period that began in late January 2015. 

Nevertheless, the court agreed with plaintiffs that the other evidence they cited – that the Focus Funds had turnover rates as high as 90%, causing “significant upheaval” and concomitant high transaction costs, and that the Focus Funds significantly underperformed benchmarks – together supported a conclusion that plaintiffs had stated a claim for imprudence in retaining the funds as investment options. The court was not overly troubled by the fact that the high turnover rate predated the statutory period because plaintiffs had alleged that this turnover rate combined with the underperformance made the investment imprudent and because a prudent fiduciary considering retention of a fund would not necessarily be limited to the statutory period in assessing the turnover rate and the performance of the fund.

The court therefore turned to “whether Johnson’s allegations of high turnover rate and underperformance, taken together, sufficiently state a claim for imprudence under ERISA.” The court reasoned that a plaintiff was permitted but not required “to point to a higher-performing fund – in conjunction with additional context-specific evidence – to demonstrate imprudence.” The critical question was whether the plaintiff had pled “facts sufficient to give rise to an inference of insufficient process.”

In this case, the court noted that plaintiffs did identify a meaningful benchmark by pleading that the Focus Funds were “expressly structured to meet an industry benchmark…the S&P target date fund benchmark,” which the Funds underperformed until at least 2014. Based on this allegation, plaintiffs alleged that a prudent fiduciary would have removed the funds by the end of 2015.

The court rejected defendants’ contention that the S&P benchmark was not meaningful, noting that the goal of a passively managed fund is to track an “industry-recognized index,” making “a relevant market index…inherently a meaningful benchmark.” In other words, the court concluded that plaintiffs had alleged that “the Focus Funds did not meet their own disclosed investment objectives.” In the court’s view, this was true whether or not “the Focus Funds were designed to match the S&P target date fund benchmark in particular,” because the complaint alleged that the S&P benchmark was an “industry-recognized standard.”

The court also found that the allegations in the complaint “support reasonable inferences about the imprudence of Parker-Hannifin’s administrative process” by objecting “to Parker-Hannifin’s retention of a fund despite high historical turnover rates and persistent underperformance relative to the Funds’ stated objectives.”  This meant that a “jury could plausibly find that a prudent decision-making process would have considered the Funds’ turnover and underperformance and would have arrived at the conclusion that retaining the funds would not be in the Plan’s best interests.” On these bases, the Sixth Circuit thus reversed the district court’s dismissal of the first claim.

With respect to the higher-cost share classes, the court concluded that the complaint “plausibly alleges that plan fiduciaries breached their duty of prudence by selecting a share class with a higher fee when reasonable effort would have unlocked a class with a lower fee.” Given the allegations that the Plan ranked as one of the largest defined contribution plans in the country, the court found plausible the allegation that the Plan had the “bargaining power to obtain share classes at far lower rates,” even if it did not meet the threshold investment levels for each such share class.

The court ruled that, at the pleading stage, the complaint “plausibly alleges that plan fiduciaries breached their duty of prudence by selecting a share class with a higher fee when reasonable effort would have unlocked a class with a lower fee.” In the court’s view, the dissent, on the other hand, “would apply an inappropriately exacting standard, requiring that Johnson ‘plausibly establish’ that Parker-Hannifin imprudently failed to obtain lower fees” when the complaint “need only plausibly allege facts supporting such an inference and need not establish anything at this stage.” The court thus reversed the district court’s dismissal of this claim as well.

Finally, because the failure to monitor claim was contingent on the other two claims, as all parties agreed, the court reversed the dismissal of the third claim.

Judge Murphy wrote a dissent vigorously disagreeing with the court’s decision as to all three claims. The dissent reasoned that plaintiffs failed to state a claim with respect to the first count because “relative rates of return by themselves tell us nothing useful about an administrator’s prudence either in buying a security or in keeping it.” Even when combined with other allegations, the dissent saw “the complaint’s performance allegations [as] irrelevant…when deciding whether the complaint plausibly suggests that Parker-Hannifin violated its duty of prudence by retaining the Focus Funds in the portfolio between 2015 and 2019.” Likewise, the dissent argued that the high turnover rate in 2013 “does not state a plausible claim that Parker-Hannifin imprudently retained the Focus Funds years later.”

With respect to the allegation that the fiduciaries acted imprudently by causing the Plan to pay for higher-cost share classes, the dissent insisted that the plaintiffs improperly “sought to obtain a ‘universal golden ticket’ to discovery merely by alleging that a large plan’s administrators did not obtain all potential ‘volume-based discounts’ for the plan that a fund provider offered.” Because Judge Murphy saw as conclusory the allegations supporting that lower-cost fee shares were available, he disagreed with his colleagues that the complaint plausibly stated a claim for imprudence.

Whichever point of view you think is right, we at ERISA Watch wish all of you a happy Thanksgiving with your friends and family.